YOUNG v. The STATE.
Komer v. The State.
Fisher v. The State.
Habib v. The State.
Kienzle v. The State.
Odle v. The State.
Anthony v. The State.
Weckback v. The State.
Osborne v. The State.
Simmons v. The State.
Nos. A13A0995, A13A0996, A13A1170, A13A1171, A13A1172, A13A1173, A13A1774, A13A1775, A13A1776.
-- October 04, 2013
Frank Thomas Gomez, Gregory Allen Willis, for Kathrine Young.Keenan Richard Howard, Carroll Rudolph Chisholm Jr., for the State.
In each of these ten DUI cases, we granted interlocutory review of the trial court's consolidated decision to deny the defendants' similar motions to determine the relevance and materiality of the source code1 of the Intoxilizer 5000 in connection with the defendants' attempt to secure production of that proprietary source code from CMI, Inc., the machine's manufacturer, in Kentucky. We affirm.
Each appellant before us was arrested in Athens–Clarke County for driving under the influence of alcohol and was given an alcohol breath test on an Intoxilyzer 5000. Based on the results of the test, each appellant was charged with DUI per se under OCGA § 40–6–391(a)(5). In each case, the appellant filed a motion seeking a determination of relevance and materiality of the source code of the Intoxilyzer 5000 in order to facilitate either an out-of-state subpoena for production of the source code, an order requiring production of the source code, or a subpoena duces tecum for an out-of-state witness and the source code.2 The trial court conducted a consolidated hearing on the ten separate motions at which four witnesses testified: appellant Habib,3 two defense experts, and one expert for the State. Following the hearing, the trial court concluded that the appellants had not established that the source code was material under the Supreme Court of Georgia's decision in Davenport v. State, 289 Ga. 399, 400, 711 S.E.2d 699 (2011), and accordingly it denied the motions. This Court granted the defendants' applications for interlocutory review.
1. The appellants first contend that the trial court failed to apply the relevant law found in Davenport regarding the circumstances under which an out-of-state witness is deemed material. We disagree.
Because “process issued by Georgia courts does not have extraterritorial power,” Georgia, like the 49 other states, enacted the Uniform Act to Secure the Attendance of Witnesses from Without the State (the “Uniform Act”), OCGA § 24–13–90 et seq.4 (Citation omitted.) Davenport, 289 Ga. at 400, 711 S.E.2d 699. The Uniform Act provides the statutory means to compel an out-of-state witness to testify at, or to bring relevant documents to, criminal proceedings in Georgia. See OCGA § 24–13–94(a).5 And an out-of-state corporation is considered a witness under the Uniform Act. See Yeary v. State, 289 Ga. 394, 396–397, 711 S.E.2d 694 (2011) (“an out-of-state corporation may be “a person” that is a material witness under the Uniform Act and may be determined to be in possession of material evidence”).
Under the Uniform Act, a party desiring to secure the attendance of an out-of-state witness in a prosecution or grand jury investigation pending in a Georgia court may request that the court issue a certificate of materiality regarding that witness. OCGA § 24–13–94(a). “The Georgia trial judge presented with a request for a certificate is charged with deciding whether the sought-after witness is a ‘material witness.’ “ Davenport, 289 Ga. at 402–403, 711 S.E.2d 699. In Davenport, the Supreme Court defined “material witness” as “ ‘a witness who can testify about matters having some logical connection with the consequential facts, esp[ecially] if few others, if any, know about these matters.’ “ Id. at 404, 711 S.E.2d 699, quoting Black's Law Dictionary (8th ed.2004).
The Supreme Court has recently applied Davenport to a case similar to those before us. See Cronkite, ––– Ga. at ––––, 745 S.E.2d 591 (2013). In that case, Cronkite filed a motion under the Uniform Act to obtain “through the testimony of an out-of-state witness, the source code for the Intoxilyzer 5000.” Id. The Supreme Court explained that under Davenport, a defendant seeking to show that an out-of-state witness was a material witness regarding the source code of the Intoxilyzer 5000 “[is] required to show that the witness' testimony regarding the source code [bears] a logical connection to facts supporting the existence of an error in [the defendant's] breath test results.” Id. at ––––, 711 S.E.2d 699.6 The parties stipulated that Cronkite had a surgical implant and a retainer in his mouth at the time of his breath test, and Cronkite argued that his implant and retainer could allow alcohol to remain in his mouth. Id. at ––––, 711 S.E.2d 699. Finally, Conkite's expert testified that
the Intoxilyzer 5000 software is designed to generate error messages in certain circumstances where an erroneous reading may occur, including circumstances involving the presence of alcohol in the mouth.
Id. at ––––, 711 S.E.2d 699.
The Supreme Court held that this showing was insufficient because Cronkite “presented no evidence that mouth alcohol was present during his breath test such that an error message should have been generated that was not generated․ Nor did Cronkite point to any other evidence of facts supporting the existence of a possible error in his specific breath test results such as discrepancies in the operation of the Intoxilyzer 5000 machine itself.” Id. at ––––, 711 S.E.2d 699 (“the mere possibility that alcohol can remain present in the mouth due to the existence of a surgical implant and retainer does not amount to evidence of facts pointing to the actual existence of excess alcohol in the mouth at the time of Cronkite's breath test that should have produced an error message from the Intoxilyzer 5000 that was not produced”) (emphasis in original). As a result, “he made no logical connection between possible problems in the source code and any consequential facts in his case that would have made the out-of-state witness' testimony regarding the source code material' here.” Id. at ––––, 711 S.E.2d 699. The Supreme Court therefore concluded that the trial court had not abused its discretion by concluding that Cronkite had failed to show that the proposed witness was material under the Uniform Act and Davenport.
In each of the ten almost identical orders issued in June 2012 in the present cases, the trial court applied Davenport and found that the evidence presented at the hearing did not establish the materiality of the source code, that is, that the evidence did not establish that the source code was logically connected with the consequential facts. In so doing, the trial court found that the testimony of Thomas Workman—one of the two defense experts—was “less than credible.” We review the trial court's decision for abuse of discretion. See Cronkite, ––– Ga. at ––––.
As shown below, only appellant Habib introduced specific evidence attempting to establish the existence of an error in his breath test results. The remaining nine appellants only offered expert testimony generally that “the source code of the machine is logically related to the consequential fact of the reliability and accuracy of the result generated by the Intoxilyzer 5000.” These nine failed to present any evidence of facts supporting the existence of an error in their specific breath test results. Accordingly, under the rules established by the Supreme Court in Davenport and Cronkite, those nine appellants failed to show that the source code for the Intoxilyzer 5000 bears a logical connection with the consequential facts. The trial court therefore did not abuse its discretion by concluding that the source code, or a witness testifying to the source code, was not material under the Uniform Act with regard to these nine appellants.
As for Habib, he presented evidence that at the time he was tested on the Intoxilizer 5000 he was crying and hyperventilating.7 And defense expert Workman testified that Habib's crying and hyperventilation “could” have led to an inaccurate breath test result and that it would be necessary to see the source code in order to investigate that possibility further. He also testified that ‘[i]t's pretty well established that a person who is hyperventilating will produce a higher breath result. That's reflected in the literature.” He asserted that the source code “would help quantify whether the machine makes any adjustments for that and, if so, what adjustments are made, are they made up or are they made down and end results and were they made in the proper direction.”8 But, as stated above, the trial court found that Workman's testimony was not credible. Without Workman's testimony, we are left with only the mere possibility that Habib's crying and hyperventilation could have produced of an erroneous breath test result, which is insufficient to establish the materiality of the source code under Davenport. See Cronkite, ––– Ga. at ––––.
Accordingly, because the defendants, including Habib, failed to present any evidence of facts supporting the existence of an error in their breath test results as required by Davenport, the trial court did not abuse its discretion when it determined that Habib failed to show that CMI was a material witness under the Uniform Act.
2. The appellants contend that by failing to grant a certificate of materiality, the trial court violated their state and federal constitutional rights to due process, compulsory process, and a fair trial. Because, as shown above, the Uniform Act provides the procedure for compelling an out-of-state witness to testify at, or to bring relevant documents to, criminal proceedings in Georgia, we interpret this enumeration as an attack on the constitutionality of the Uniform Act or specific provisions therein. And because the trial court did not specifically rule on the constitutionality of the Uniform Act or any of its provisions, the issue cannot be considered on appeal. Darby v. State, 239 Ga.App. 492, 494(2)(b), 521 S.E.2d 438 (1999) (appellant review precluded where constitutional question was raised in a motion but not explicitly ruled on in the trial court); see also Marr v. Ga. Dept. of Ed., 264 Ga. 841, 452 S.E.2d 112 (1995).
3. The appellants contend that the trial court erred because the appellants' “proffers, affidavits,9 and testimony alone and in combination established materiality, and because the State failed to provide any evidence to rebut that materiality.” A review of their briefs shows that the appellants are arguing in essence that the trial court should have accepted their counsels' statements, i.e., their proffers, that the source code was material to their defense and that any evidence on the matter of materiality was not necessary. This enumeration is controlled by Division 1 of this opinion and Cronkite, which requires evidence of facts to show that the proposed witness is material.
4. Finally, the appellants contend the trial court erred by failing to follow certain federal case law. But we are tasked here with construing and applying the terms of the Uniform Act as codified in Georgia. And, in the absence of a federal question, this Court is not normally bound by federal court decisions except those of the United States Supreme Court, especially if pertinent Georgia authority exists. See Sanchez v. State, 234 Ga.App. 809, 810, n. 1, 508 S.E.2d 185 (1998); Rodgers v. First Union Nat. Bank, 220 Ga.App. 821, 822(1)(a), 470 S.E.2d 246 (1996); T.G. Stegall Trucking Co. v. Tower Lines, 135 Ga.App. 286, 288(5), 217 S.E.2d 488 (1975). Here, the construction and application of the Uniform Act as codified in Georgia is controlled by the Georgia Supreme Court's decisions in Davenport and Cronkite. And in Division 1, we applied that law. Moreover, the cases cited by appellants are distinguishable, in large part because none concern the Uniform Act.10
PHIPPS, C. J., and ELLINGTON, P. J., concur.